The General Rule: Consent Must Continue Until the Decree
A mutual-consent divorce under Section 13B of the Hindu Marriage Act, 1955 needs both spouses to consent at the First Motion and again at the Second Motion. In Smt. Sureshta Devi v. Om Prakash (1991), the Supreme Court held that mutual consent must continue until the decree is passed. That is why a spouse can, in principle, decline to join the Second Motion.
The Supreme Court repeated this in Dhananjay Rathi: it is “well within the law, for any party, to withdraw consent at any stage” before the decree (para 29). The judgment draws a line between withdrawing consent to the divorce and walking away from a settlement that has already been performed.
The Case at a Glance
| Date | What happened |
|---|---|
| 19 Feb 2000 | Marriage solemnised under Hindu rites. |
| 13 Jul 2023 | Family Court, Saket refers the husband's divorce petition to mediation. |
| 16 May 2024 | Settlement signed: husband to pay ₹1.5 crore in two instalments (₹75 lakh at First Motion, the balance at Second Motion), ₹14 lakh for a car and return listed jewellery; wife to execute a gift deed of about ₹2.52 crore; both agree not to file further cases. |
| 14 Aug 2024 | First Motion allowed. Husband pays ₹75 lakh and ₹14 lakh and returns the jewellery; wife transfers the agreed amount. |
| By 20 Feb 2025 | Second Motion due. Wife withdraws consent, alleging promises of jewellery worth ₹120 crore and gold worth ₹50 crore that were not part of the settlement. |
| 16 Oct 2025 | Wife files a complaint under Section 12 of the Domestic Violence Act against the husband and his mother. |
| 13 Apr 2026 | Supreme Court allows the husband's appeal. |
Source: judgment of the Supreme Court dated 13 April 2026, paras 3–9.
What the Supreme Court Held
- Settlement terms bind the parties. Once a settlement is reached, “it is not open for the party to step back from the terms and conditions so arrived between them” (para 29).
- Two exceptions only. A party may resile if it proves the settlement was obtained by force, fraud or undue influence, or if the other side has not fulfilled its conditions (para 31).
- Heavy costs. A party that resiles from an authenticated mediated settlement must be “encumbered with heavy costs” (para 30).
- Sureshta Devi distinguished. The wife could not prove fraud, force or undue influence, so the general rule on withdrawal did not help her (para 36).
- DV complaint quashed. The complaint lacked specific allegations of violence, was filed after the husband moved contempt, and was held to be an afterthought and an abuse of process (paras 37–41).
- Marriage dissolved under Article 142. The dissolution was made conditional on the husband paying the balance within two weeks, and all connected proceedings were closed (para 55).
What the judgment does not decide
The divorce was granted by the Supreme Court under Article 142 of the Constitution. A Family Court hearing a Section 13B petition does not have that power and still needs continuing consent. The case concerned a court-referred mediation settlement; it did not turn on the Mediation Act, 2023. The outcome depended on its facts, including full performance by the husband.
Practical Points When Drafting a Mediated Settlement
The settlement in this case is a useful model of terms that courts can later enforce. In general terms:
- Stage the payments. Tie instalments to the First Motion and the Second Motion so that performance on both sides can be shown.
- Itemise jewellery and stridhan. The settlement here listed jewellery in appendices, which helped the Court reject later claims outside it.
- Record a mutual no-litigation undertaking covering civil and criminal cases against each other and family members.
- Keep proof of performance: payment records, receipts for returned articles and any transfer deeds.
- Settle through the court's mediation centre where a case is already pending, so that the settlement is recorded by the court.
See also: what to include in a mutual divorce MoU and settlement agreements on Mediate.co.in.
Ordinarily, yes. Mutual consent must continue until the decree, and the Supreme Court in Dhananjay Rathi v. Ruchika Rathi accepted that a party may withdraw consent before the decree. What the Court did not allow was stepping back from the terms of a settlement already signed and acted upon, unless force, fraud, undue influence or non-performance by the other side is proved.
The facts matter. In Dhananjay Rathi the husband had paid the First Motion instalment and the wife withdrew. The Supreme Court held that a party resiling from an acted-upon settlement must face heavy costs, quashed a later Domestic Violence complaint as an afterthought, and dissolved the marriage under Article 142. Remedies such as contempt, enforcement of undertakings or a fresh petition need case-specific advice.
A settlement in which both sides undertake not to file further cases is relevant, but it does not automatically bar every complaint. In Dhananjay Rathi the Court quashed a DV complaint filed after the withdrawal because it lacked specific allegations and was found to be an afterthought. Each complaint is tested on its own allegations.
No. A Family Court acting under Section 13B needs continuing consent. The dissolution in Dhananjay Rathi was ordered by the Supreme Court under Article 142 of the Constitution, a power the Family Court does not have.
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